.INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING ARMED
ACTIVITIES
ON THE TERRITORY
OF CONGO
DEMOCRATie REPUBLIC OF THE CONGO
v.
UGANDA
WRITTEN OBSERVATIONS
OF THE REPUBLIC OF UGANDA
ON THE QUESTION OF THE
ADMISSIBILITY OF THE
COUNTER-CLAIMS MADE
IN THE COUNTER-MEMORIAL
OF THE REPUBLIC OF UGANDA OF
21 APRIL 2001
15AUGUST 2001 TABLE OF CONTENTS
INTRODUCTION .........................................................................
1
CHAPTER 1PREUMINARY QUESTIONS ....................... 2
A. The 'Formai Requirements' Of Article 80,
Paragraph 2......................................................... 2
B. Procedural Solecisms In The Observations
Of The Applicant State....................................... 7
C. The Issue Relates Exclusively To
Admissibility ...................................................... 9
D. Article 80, Paragraph 3, Is Irrelevant ................. 9
CHAPTER II THE ADMISSIBILITY OF UGANDA'S
COUNTER-CLAIMS .............................................l......
............
A. The Criteria For The Application Of The
Provisions Of Article 80................................... 10
B. The Concession Of The DRC: The Use Of
Force Counter-Claim Against The Applicant
State Relating To The Period May-August
1998.................................................................. 11
C. The Use Of Force Counter-Claim Against
The Applicant State Relating To The Period
PriorTo May 1998 ........................................... 13
D. The Counter-Claim Relating To The Attack
On The Ugandan Embassy And The
Inhumane Treatment Of Ugandan
Diplomatie Personnel And Other Ugandan
Nationals........................................................... 29
E. The Counter-Claim Relating To The DRC's
Violations Of lts Obligations Under The
Lusaka Agreement. ........................................... 32SUBMISSI 0 NS.............................,...............~..54.................................
11-------------------------------------
INTRODUCTION
1. These Observations are submitted in
accordance with the agreement reached during the
meeting with the President on 11 June 2001, and the
letter of the Registrar, of the same date, recording the
agreement.
2. The Republic of Uganda has not seen fit
to comment on all the questions of procedure referred to
in the Observations submitted by the Democratie
Republic of the Congo (DRC), and particularly certain
questions which appear to bear no relation to the actual
provisions of the Statute and Rules of Court.
Accordingly, the Republic of Uganda reserves its
position on procedural issues which are not the subject
of comment in these Observations.
1 CHAYI'ERI
PRELIMINARY QUESTIONS
A. The 'Formai Requirements' Of Article 80,
Paragraph 2
3. In its Observations, the Democratie
Republic of the Congo contends that the presentation of
the counter-claims in the Republicof Uganda's Counter
Memorial of 20 April 2001 is not in conformity with the
'formai requirements' (exigences formelles) of Article
80, paragraph 2, of the Rules of Court. Observations,
para. 9.
4. It is not the case that Article 80,
paragraph 2, contains 'formai requirements,' and it
emerges that the Applicant State has two specifie
complaints. See the Observations, paras. 10-25. The
first complaint, expressed with much repetition, is that
the Ugandan submissions are difficult to identify. See
the Observations, para. 10. The Republic of Uganda
rejects this contention and no doubt the Court will make
its own determination. However, certain of the
arguments advanced on behalf of the Democratie
Republic of the Congo cali for sorne commentary.
5. In the first place, the Observations (at
para. 10) make the strange complaint that the particulars
of the counter-claims do not appear in the Submissions.
ln the same paragraph, the Applicant State complains
that it is difficult to identify what the daims are, and
then lists the preciseaims, which are based on well
known legal formulations.
6. In fact, the counter-daims are set out in
the Counter-Memorial in appropriate sequence, as
follows:
2"C. The Counter-Claims
379. ·f ··ihe first /place, the
Government of Uganda relies upon
various principles of custornary or general
international law. Thus the Court is asked
to adjudge and declare that the Democratie
Republic of the Congo is responsible for
the following breaches of its obligations
under customary or general international
law.
(a) The obligation not to use force
against Uganda.
(b) The obligation not to intervene in
the internai affairs of Uganda.
(c) The obligation not to provide
assistance to arrned groups carrying out
military or pararnilitary activities in and
against Uganda by training, àrming,
eguipping, financing and supplying such
arrned groups.
385. In the second place, the
Government of Uganda relies upon Article
2, paragraph 4 of the United Nations
Charter, which provides that:
'Ali members shall refrain in
their international relations
from the threat or use of force
against the territorial integrity
or political independence of
any State, or in any other
3 manner inconsistent with the
Purposes of the United
Nations.'
386. Article 2, paragraph 4, is
relied upon to support, in the alternative,
the three obligations of customary law
invoked in paragraphs 379-384 above.
D. Specifie Examples Of Congolese
Aggression
E. The Attack On The Ugandan
Embassy And The Inhumane
Treatment Of Ugandan
Diplomatie Personnel And Other
Ugandan Nationals
405. The inhumane treatment
and threatsto the security and freedom of
nationals of Uganda, detailed in
paragraphs 397 to 399 above, constitute a
series of breaches of the international
IDimmum standard relating to the
treatment of foreign nationals lawfully on
State territory, which standard forms a part
of customary or general international law.
406. The confiscations of
privately owned cars and other items of
property belonging to Ugandan nationals
also constitute breaches of the
international minimum standard.
407. The inhumane treatment
described in paragraphs 397 to 399 above
also, and in the alternative, constitutes
breaches of the standard of general
4 international law based upon universally
recognised standards of hu~a .orights
concerning the security of the human
persan and the peaceful possession, use
and enjoyment of property.
408. ln respect of the seizure of
the Embassy of the Republic of Uganda,
the Official Residence of the Ambassador,
and official cars of the mission, these
actions constitute an unlawful
expropriation of the public property of the
Republic of Uganda. The absence of any
provision of compensation constitutes an
additional element of illegality.
F. The DRC's Violations Of Its
Obligations Under The Lusaka
Agreement
409. Notwithstanding the
Congolese government's repeated verbal
pronouncements affirming its commitment
ter the Lusaka Agreement, the DRC bas
consistently violated its obligations
thereunder."
7. These excerpts are intended to
demonstrate the structure and sequence of the indication
of Uganda's counter-claims, and they focus upon the
precise indication of the bases of daim. It is difficult to
see what further precision could be required.
8. The second complaint advanced is that it
is not possible to determine if and to what extent
Uganda presents a daim for reparation. See the
Observations, paras. 14-17. Thus, the Applicant State
observes:
"La Cour n'aura pas manqué de
relever, à la lecture des écritures
ougandaises, qu'aucune demande en
5 réparation n'est formulée, ni dans le
chapitre XVIII du contre-mémoire, ni dans
conclusions. La seule indication sur ce
point résulte du paragraphe 2 des
conclusions, par lequel l'Ouganda
demande à la Cour de << réserver la
question de la réparation [the issue of
reparation] relative aux demandes
reconventionnelles à un stade ultérieur de
la procédure >>. Cet énoncéne précise
cependant pas la position de 1 'Ouganda au
stade particulier du dépôt du contre
mémoire, qui est le seul pertinent aux fins
de l'application de l'article 80 par. 2 du
Règlement de la Cour.1o'(Para. 14).
9. This reasoning is remarkable. The
Submissions in the Counter-Memorial state the position
of Uganda with complete clarity. Moreover, it is the
procedure commonly adopted by the Court at the Merits
phase of the proceedings. See,e.g., the Corfu Channel
(Merits) case, I.C.J. Reports, 1949, p. 36.
10. In this context, it is a strange
circumstance that the Memorial of the Democratie
Republic of the Congo contains the following request to
the Court:
"La réparation de 1'ensemble des
dommages subis par la République
1
"The Court will not fail to notice by reading Uganda's document,
thatno claim for reparation is presented, in either Chapter XVIII of
the Counter-Memorial, or in the submissions. The only mention of
this point is in paragraph 2 of the submissions, through which
Uganda requests the Court to "reserve the issue of reparation in
relationo counter-claims to a subsequent stage of the proceedings".
This statement does not, however, specify, Uganda's position on the
particular stage of the submissions of the Counter-Memorial, which
is relevant to the application of Article 80, para 2 of the Rules of
Court."
6 ..!'....• :.'·;
démocratiquedu Congo en raison des faits
illicites perpétréspar 1'Ougan.d.a,.supposera
donc 1'évaluation de tous les types de
préjudices, et par conséquent le calcul
d'un montant principal augmenté d'un
intérêt,le tout selon des modalités gui
dépendreont des circonstances
particulières gui seront analysées à un
2
stade ultérieur de la procédure. " (Para.
6.56, emphasis supplied).
B. Procedural Solecisms In The Observations Of
The Applicant State
11. For the record it is necessary to indicate a
sample of the procedural solecisms which confront the
reader of the Observations submitted on behalf of the
.· Applicant State. These solecisms include the following:
(a) A misunderstanding of the function of the
Submissions in relation to the substance of the
Memorial.
(b) A failure to appreciate that the postponeinent of
the compensation phase is a normal feature of
the Court's proceedings.
(c) The belief that the provisions of Article 79 apply
to the procedure concerning counter~cl andims
the consequent reservation of a right to submit
preliminary objections in the Rejoinder. See the
Observations, para. 76. Thus, paragraph 74 of
the Observations offers a novel view of the Rules
of Court:
2
"Compensation for ali of the damage suffered by the Democratie
Republic of the Congo as a result of the wrongful acts committed
by Uganda will therefore cali for an assessment of ali categories of
injury and hence the calculation of a principal amount plus interest,
details of which will depend on the particular circumstances, to be
examined at a latcr stage in the proceedings.
7 "La décision à laquelle la Cour
arriverait éventuellement, en application
de l'article80 par. 3 du Règlement, de
joindre tout ou partie des demandes
reconventionnelles formulées par
l'Ouganda emporterait des conséquences
procédurales particulières. En pareille
hypothèse, en effet, la partie du contre~
mémoire du défendeur dans laquelle sont
développées les demandes
reconventionnelles est assimilée à une
nouvelle requête. ll s'en suit logiquement
que 1'article 79 du Règlement s'applique
alors mutatis mutandis, et permet au
défendeur sur demande reconventionnelle
de soulever des exceptions préliminaires à
l'encontre des demandes dirigées contre
lui. L'examen des demandes
reconventionnelles auquel la Cour est
appelée à se livrer en application de
l'article80 se limite en effet à se une
analyse de la recevabilité prima facie de
ces demandes en tant que demandes
reconventionnelles. La décision que la
Cour est invitée à prendre sur cette
question particulière ne peut avoir d'autre
portée,et n'a donc aucunement pour effet,
de trancher la question de la recevabilité
de ces demandes au sens de 1'article 79 du
Règlement et encore moins - c'est
l'évidence même- celle de leur bien~
3
fondé. "
3 "If the Court cnded up connecting one or severa! countcr-claims
of Uganda in line with the provisions of Article 80 paragraph 3 of
the Rules of Court, this would cause serious procedural
consequences. In the same way, the Section of the Counter
Memorial of the respondcnt in whicounter~cl ae presentcd
should be rcconstituted into fresh proceeltlogically follows
that Article 79 of the Rules of Court is applied mutatis mutandis
8c. The Issue Relates Exclusively To
Admissibility ,. ...
12. The prov1s1ons of Article 80 are
essentially concerned with the .issuesof jurisdiction and
admissibility, that is to say, the question of the
competence of the Court in relation to the subject matter
of the counter-claims. Given that no question of
jurisdiction has been raised in the Observations of the
Applicant State, the issue at large is exclusively that of
admissibility within the provisions of Article 80.
D. Article 80, Paragraph 3, Is Irrelevant
13. In the final section of the Observations of
the DRC there is a set of arguments which purport to be
based upon Article 80, paragraph 3, of the Rules of
Court. See paras. 69-73. This section exhibits the
elements of procedural errer and repetition which
characterise the Observations overall.
14. Article 80, paragraph 3, of the Rules of
Court adds nothing to the criteria of admissibility to be
found in the first two paragraphs of the Article. It is
universally recognised that paragraph 3 is exclusively
concerned with the power of the Court to call for oral
hearings. See, e.g., the Genocide Case, Order of 17
December 1997, I.C.J. Reports, 1997, pp. 278-80,
(Separate Op.inion of Judge Lauterpacht, paras. 3-7).
The DRC arguments are wholly misconceived, because
paragraph 3 is irrelevant.
15. Paragraph 71 of this section involves a
and allows the rcspondcnt to raîsc prelîminary objections to counter
the daims brought against her. The consideration of the countcr
claims which the Court is caHcd upon to decide on in conformity
with Article0 is limited, prima facie, to the admissibility of these
daims as counter-claims.The decision which the Court is being
called upon to make is the issue of admissibility of these daims
in conformity with Article 79 of the Rules of Court."
9repetition of points relating to the issue of direct
connection.
16. Paragraph 72 repeats the procedural error
already examined in paragraph 9(c) of the present
Observations.
CHAPTERII
THE ADMISSIBILITY OF UGANDA'S
COUNTER-CLAIMS
A. The Criteria For The Application Of The
Provisions Of Article 80
17. The only express criterion in Article 80,
paragraph l, is that the counter-claim must be "directly
connected with the subject-matter of the daim of the
other party." The Court has, in two recent cases, set
forth a number of ancillary criteria to assist in the
application of the test of direct connection. Thus, in the
Order on Counter-claims in the Genocide case, I.C.J.
Reports, 1997, p.243, the following criteria are
formulated:
(a) The counter-claim is distinguishable from a
deferree on the Merits and thus in the case of a
true counter -daim the Submissions set out
separate daims seeking relief beyond the
dismissal of the daims of the Applicant State.
Ibid., pp. 256-257.
(b) The degree of connection between the daims
must be assessed both in fact and in law. Ibid.,
p. 258.
(c) Whether or not the respective daims rest on facts
of the same nature. Ibid.
(d) Whether or not the respective daims form part of
the same factual complex. Ibid.
lü ,l. • .·•
(e) Whether or not the two Parties pursue, with their
respective daims, the same leg~..·.m. Ibid.
(f) Whether or not the acceptance of the counter-
claims would compromise the proper
administration of justice. Ibid., pp. 257-258.
18. These criteria were confirmed by the
Court in the Case Concerning Oil Platforms, I.C.J.
Reports, 1998, p. 190.
19. In general, the Observations of the
Applicant State recite the criteria set forth above. See
the Observations, paras. 24-40 passim. However, there
is at least one respect in which the Applicant State
departs substantially from the generally recognized
principles concerning the application of Article 80. This
departure takes the form of a rather confused exposition
which seeks to establish that a conditionf admissibility
is that the counter-claim must have a close connection
with the means of deferree. See the Observations, paras.
33-35. This argument is baseless in principle and,
indeed, in paragraph 33 the Applicant State accepts that
there is rio necessary coïncidence between a deferree and
a counter-claim. In any case, there is no support in
either the doctrine or the jurisprudence for this
invention. In particular, the alleged principle does not
receive support from the Orders in the Genocide and Oil
Platforms cases. The short quotation from these Orders
included in paragraph 35 of the Observations does not
contain statements of the principle.
B. The Concession Of The DRC: The Use Of
Force Counter~Ci a iainst The Applicant
State Relating To The Period May-August
1998
20. In the Observations, the Applicant State
concedes that the counter-claim relating to the use of
force in the period May to August 1998 is admissible.
See the Observations, paras. 25-40. The Republic of
11Uganda is content to acknowledge this concession.
21. However, the Observations are silent as
to the admissibility of the counter-daim insofar as it
relates to events subsequent to August 1998. It is
unclear whether the Applicant State has conceded the
admissibility of the counter-claim for the period from
August 1998 to the present, or bas simply ignored it.
22. It should be noted that Uganda's counter-
claim involving the State responsibility of the DRC for
the illegal useof force against Uganda express!y covers
the entire period from 1994 to the present. The Counter
Memorial sets forth specifie examples of Congolese
sponsored armed aggression against Uganda in
February, March, August, October, November and
December of 1999; in August and December of 2000;
and in March of 2001. At paragraph 394, the counter
claim makes specifie reference to one of these post
August 1998 attacks:
"On 9 December 1999, approximately
50 ADF insurgents attacked Katojo
Government Prison in Fort Portal, Uganda,
killed a UPDF soldier and civilian, and
abducted 360 inmates... The ADF
provided at least 60 of them with military
training and deployed them to fight against
Uganda."
23. As further described below (see paras.
29-33), Uganda's counter-claim describes the
continuous and uninterrupted use of force against
Uganda for which the Congolese State bears
responsibility from 1994 to the present. There is no
basis for limiting the scope of the counter-claim solely
to the period May-August 1998.
12 ' .
C. The Use Of Force Counter-Ciaim Against The
Applicant State Relating To.The Period Prior
To May 1998 · '
24. As the DRC recognises in the
Observations, the acts of aggression against Uganda
which are the subject of a counter-claim relate to the
period from 1994 to present. See the Observations,
paras. 41-50. These acts are particularised in Uganda's
Counter-Memorial (paras. 380-383 and 388). These
passages include detailed cross-referencesto other parts
of the Counter-Memorial, a fact which is not indicated
by the DRC in its Observations.
25. The DRC contends that this counter-
claim does not satisfy the criteria governing the
admissibility of counter-claims insofar as it relates to
events prior to May 1998. See the Observations, paras.
41.-50.
26. As a preliminary question, it is noted that
the DRC insists upon the phantom criterion according to
which there should be a connection between the counter
claim and the deferree presented in face of the principal
daim. See the Observations, paras. 47-50., As bas been
explained above at paragraph 1.9, this alleged criterion
bas no legal foundation.
27. As a further preliminary matter, the
Republic of Uganda rejects the reasoning in paragraph
50 of the Observations as unfounded in law and
unrelated to the Rules of Court. The argument that
Uganda bas changed its reasoning flies in the face of
common sense. Uganda bas now presented its Counter
Memorial, which contains the pertinent legal reasoning.
28. In any event, the Counter-Memorial fully
demonstrates the direct factual and legal connection
between the "illegal use of force" counter-claim
presented by the Republic of Uganda covering the entire
period from 1.994to the present and the subject matter of
1.3the "illegal use of force" daim presented by the
Democratie Republic of the Congo. As noted above,
and as admitted in the Observations (see para. 16), the
DRC admits that there is a direct connection, sufficient
to satisfy the requirements of Article 80 of the Rules of
Court, between Uganda's "illegal use of force" counter
claim for the period from May through August 1998,
and the "illegal use of force" daim set forth in the
Application of 23 June 1999. Thus, the DRC concedes
that the counter-daim is admissible insofar as it covers
that period.See the Observations, paras. 37-39.
29. By conceding the admissibility of the
counter-claim for the period from May through August
1998, the DRC bas effectively conceded its admissibility
for the entire period from 1.994 to the present. If the
counter-claim is sufficiently connected in fact and in law
to the subject matter of the principal daim, such that
Article 80 is satisfied for the period from May through
August 1.998, how can the counter-claim not be so
connected for the entire period? As set forth in the
Counter-Memorial, and as summarised below, the
counter-claim describes a continuous pattern of behavior
by the DRC, involving the illegal use of force against
the Uganda without interruption from 1994 to the
present. The DRC's Observations fail to provide a
plausible basis for arbitrarily cuttingoff the counter
claim as of May 1998, or at any other point intime.
30. As set forth at the very beginning of the
Counter-Memorial (paras. 3 and 4), and as demonstrated
repeatedly throughout its text:
"3. The evidence shows that Uganda
has been the victim of armed aggression
emanating from Congo continuously since
1994. For seven years, without
interruption,Uganda bas been subjected to
devastating cross-border attacks on a
regular basis from armed insurgents based
in eastern Congo. Except for a brief
14 .,
period, their activ1ties have been
coordinated by,. ,and subject ,:Jo the
command and control of, thc ~o'ngolese
government. The purpose of these attacks
bas been, and remains, to terrorise
northern and western Uganda, seize
territory, and destabilise and ultimately
overthrow the Ugandan government by
force of arms.
4. Varions anti-Uganda insurgent
groups - sorne professing loyalty to Idi
Amin, the notorious former Ugandan
dictator now exiled in Saudi Arabia -
have operated from Congolese territory
during this period, with the full support of
successive Congolese governments
headed, respectively, by Presidents
Mobutu Ssese Seko, Laurent Kabila and
Joseph Kabila. These armed groups call
themselves: the Allied Democratie Forces
(ADF); Lord's Resistance Army (LRA);
Uganda National Rescue Front 11(UNRF
II); Former Uganda National Army
(FUNA); West Nile Bank Front (WNBF);
and National Army for the Liberation of
Uganda (NALU). The Government of the
DRC has officially acknowledged the
presence of ail of these groups on its
territory." (Underlining added).
31. The evidence presented in the Counter-
Memorial establishes that theDRC's illegal use of force
against Uganda bas been a single continuum. To be
sure, the heads of the Congolese State have changed,
and the State itself bas been renamed, but the illegal
activities and the main actors identified in the counter
claim have continued without interruption since 1994.
In particular, the six armed groups listed above, whose
presence in the DRC was formally acknowledged by the
Congolese government in July 1999, are the same armed
15groups that carried out regular attacks against Uganda
from Congolese territory in the period 1994-1998. See
the Counter-Memorial, Chs. I, III, and IV. Just as these
groups received arms, ammunition, supplies, transport
and training from the Congolese armed forces after May
1.998(as alleged in that part of the counter-claim that is
deemed "admissible" by the DRC), they received the
same ldnds of support from the Congolese armed forces
between 1.994and 1.998. See ibid.,paras. 382-384. Just
as the Congolese armed forces provided command and
control, and supervised military operations, of the armed
groups after May 1998, the Congolese armed forces
performed the same services for the very same armed
groups for several years prior to May 1998. See ibid.,
paras. 1.8-23, 34-35. Indeed, the very same Congolese
army officer, Colonel Mathias Ebamba, supervised the
activitiesof the armed groups in eastern Congo before
and after May 1998, onder the Congolese regime led by
Mobutu Ssese Seko as weil as the one led by Laurent
Kabila. See the Counter-Memorial, para. 34. Numerous
other Congolese army officers, subordinate to Colonel
Ebamba, continued supporting the anti-Uganda armed
groups in the same manner and to the same extent after
President Kabila assumed power as they did before
President Mobutu was overthrown. See ibid.para. 34.
32. The evidence shows that there was never
an interruption in the activities these armed groups, or
in the illegal use of force against Uganda. For sorne
months after his accession to power in May 1997,
President Laurent Kabila employed a more cooperative
policy toward Uganda, and suspended open
collaboration with the armed groups. See ibid.,paras.
30-32. However, as set forth in the Counter-Memorial,
the attacks against Uganda continued, Congolese army
officers in eastern Congo continued to support the armed
groups, and within a short time President Kabila and his
government began again to collaborate with them
openly. See ibid.paras. 33-35. Leaders of the ADF and
WNBF, including Taban Amin (son of the former
Ugandan dictator) were invited by President Kabila to
16Kinshasa to fonnulate jointly strategy and agree upon
tactics against Uganda; as they bad .been by former
President Mobutu between 1994 and 1997. See ibid.,
paras. 35-36. And, like President Mobutu, President
Kabila resumed Congo's military alliance with Sudan,
and renewed the Congolese government's consent for
Sudan's use of military airfields in Congo to deliver
supplies and coordinate the activities of the Congo
based anti-Uganda armed groups. See ibid.para. 38.
33. As Uganda's counter-claim states (at
paras. 382-384 of the Counter-Memorial):
"382. Since at least 1994, the
Democratie Republic of Congo bas
harbored and assisted anned groups
staging major assaults in and against
Uganda.
383. In the months following the
Rwandan civil war, President Mobutu
permitted the ex-FAR and Interahamwe to
use the refugee camps in eastern Congo as
hases to conduct military training activities
and stockp.ile arms. Together with his ex
pAR and Interahamwe allies, President
Mobutu provided anti-Uganda insurgents
with arms, ammunition, training and
logistical support, coordinated their
military activities and launched joint
operations against Uganda. President
Mobutu also cultivated a military alliance
with the Government of Sudan, pursuant
to which the Sudanese army occupied
airfields in northeastern Congo for the
purpose of delivering arms, supplies and
troops to the anti-Uganda rebels.
Congolese and Sudanese military officers
also supervised combined military training
exercises for ex-FAR, Interahamwe and
anti-Uganda rebels in Garamba Park, .in
17 northeastern Congo. See, especially,
paras. 15-20 above.
384. As described in paragraphs 33-39
and 47-51, with the exception of a brief
period after he took power in Congo,
President Kabila renewed his
predecessor's alliances with the anti
Uganda insurgents, the ex-FAR and
Interahamwe, and the Government of
Sudan. Under the Kabila regime, FAC
officers and their Sudanese counterparts
coordinated recruitment, training,
weapons, supplies and military operations
for the ADF, the WNBF and the other
anti-Uganda insurgents. Many of these
insurgents were ultimately incorporated
into the FAC."
34. Thus, there is no basis for amputating
half of Uganda's counter-claim. There is no justification
for cutting it off at May 1998, as suggested by the DRC,
or at any other date. The unlawful activities conducted
or supported by the Congolese State prior to May 1998
are plainly part of the "same complex of facts" as those
that took place subsequent to that date, and they are part
of the "same complex of facts" as those upon which the
DRC's own "illegal use of force" daim is based. Thus,
the facts upon which Uganda's counter-claim is based
are directly connectedto the subject matter of the DRC's
daim.
35. There is also a direct legal connection
between Uganda's counter-claim, including that part of
it covering the years 1994-1998, and the original daim
presented by the DRC.
36. The DRC submitted its Application to the
Court on 23 June 1999 "instituting proceedings against
the Government of the Republic of Uganda, on account
of acts of armed aggression perpetrated by Uganda on
18 ..'··'/.
the territory of the Democratie Republic of the Congo,
in .flagrant violation of the United J":ol"atipsharter and
of the Charter of the Organization of African Unity."
Application, p. 5 (italics in original). The Application
went on to state that:
"The Democratie Republic of the
Congo founds its case on the armed
aggression which it bas suffered since the
invasion of its territory on 2 August 1998,
together with all of the unlawful acts
resultant therefrom, which to this day
continue to be carried out with complete
impunity." (Ibid., p. 11, italics in
original).
37. The Application alleges that "Uganda is
in breach of Article 2, paragraph 4, of the United
Nations Charter... " Ibid., p. 13. In its Memorial of 19
July 2000, the DRC accused Uganda ofviolating Article
2, paragraph 4, in the following ways:
"A. The violation of the prohibition
of the use of force in international
relations
4.05 There is little doubt that the
continued presence of the Ugandan Army
in the Congo and its active support for
armed movements .fighting against the
legitimate Government constitutes a
flagrant violation of the rule prohibiting
the threat or use of force in international
relations[.]
4. The illegal military support for
irregular armedforces
4.28 Another aspect of the use of
force by Uganda consists in its active
19 support for the armed forces that have
been fighting against the legitimate
Government of the Democratie Republic
of the Congo for- nearly two years...
Uganda is not content with supporting the
opposition economically and financially
but is also providing direct military
support, sometimes by participating in
attacks, sometimes by making a
contribution of a logistical nature..."
38. Uganda's counter-claim is based, like the
DRC's daim, on the same legal prohibition on the use
of force in international relations, and the same
prohibition on providing military support to irregular
armed forces. The counter-claim alleges, as does the
original daim, a violation of Article 2, paragraph 4, of
the United Nations Charter. See the Counter-Memorial,
paras. 385-386. Asîn the Oil Platforms case, "the two
Parties pursue the same legal aim, namely the
establishment of legal responsibility for violations of the
[same] Treaty'', in this case, Article 2, paragraph .4. of
the United Nations Charter. I.C.J. Reports, 1998, p.
205. Thus, the daim and the counter-claim, both based
on illegal use of force in violation of the same Charter
provision, are directly connected in law,s well as fact.
39. In the Oil Platforms case, Iran's
challenge to the admissibility of the counter-claim
submitted by the United States was rejected by the
Court. The daim involved the United States'
destruction of oil platforms in the Persian Gulf
belonging to Iran in violation of a 1955 Treaty of Amity
between the two States. The counter-claim alleged that
Iran had violated different provisionsf the same Treaty
through its attacks on vessels and its layingof mines .in
the Gulf. The Court concluded that the counter-daim
"is directly connected with the subject-matter of the
daims of Iran," ibid., p. 205 (underlining added), after
finding that:
20 .~..
"Whereas ... it emerges from the
Parties' submissions that their daims rest
on facts of the same nature; whereas they
form part of the same factual complex
since the facts relied on - whether
involving the destruction of oil platforms
or of ships- are alleged to have occurred
in the Gulf during the same period;
whereas the United States indicates,
moreover, that it intends to rely on the
same facts and circumstances in order both
to refute the allegations of Iran and to
obtain judgment against that State; and
whereas, with their respective daims, the
two Parties pursue the same legal aim,
namely the establishment of legal
responsibility for violations of the 1955
Treaty[.]" (1bid., underlining added).
40. Similarly, in the Genocide case, the Court
rejected the argument of Bosnia and Herzegovina that
Yugoslavia's counter-claim was not directly connected
to the subject matter of the original daim. The Court
found that:
"Whereas, in the present case, it
emerges from the Parties' submissions that
their respectivedaims rest on facts of the
same nature; whereas they form part of
the same factual complex since ail those
facts are alleged to have occurred on the
territory of Bosnia and Herzegovina and
during the same period; and whereas
Yugoslavia states, moreover, that it
intends to rely on certain identical facts in
order both to refute the allegations of
Bosnia and Herzegovina and to obtain
judgment against that State[.]" (I.C.J.
Reports, 1997, p. 258, underlining added).
41. On this basis, the Court concluded that
21"the counter-claims submitted by Yugoslavia are
directly connected with the subject-matterf Bosnia and
Herzegovina's daims; and ... as counter-claims, they
are therefore admissible and form part of the present
proceedings[.]" Ibid., p. 259 (underlining added).
42. In the present case, the subject matter is
indisputably the armed conflict between Congo and
Uganda, in wh.ich each accuses the other of "armed
aggression" and "armed attacks." As demonstrated in
the Counter-Memorial, this conflict has continued
without interruption from at least 1994 to the present.
See the Counter-Memorial, Chs. l-VI. Congo and
Uganda accuse one another of sponsoring, supporting
and conducting joint military activities with armed
groups hostile to the other; and Congo further accuses
Uganda of invading and occupying its territory. As the
Court concluded, in upholding the admissibility of the
counter-claims in both the Oil Platforms case and the
Genocide case, the facts presentedin both the daim and
the counter-claim in the present case are "of the same
nature" and are "part of the same factual complex." It
cannot reasonably be gainsaid that the facts presented in
Uganda's counter-daim- involving Congo's continuous
and uninterrupted support for armed groups using its
territoryto attack Uganda - are "directly connected to
the subject matter" of Congo's daim against Uganda,
which includes Uganda's alleged support for armed
groups hostile to Congo. Thus, as in the Oil Platforms
and Genocide cases, the counter-daim in the present
case is admissible under Article 80, and the DRC's
objections toit should be rejected.
43. The DRC's challenge to Uganda's
counter-claim suffers the same defect as ]ran's objection
to the counter-claim submitted by the United States in
the Oil Platforms case. It will be recalled that Iran
argued in that case that, to be admissible, the counter
claim must be directly connected to the daim. The
United States argued that:
22 - .,:·-.'~~.~
"'Iran ... regularly mischaracterizes
the key legal requirements ofArticle 80';
whereas the United States points out that
under that provision the counter-claim
must be directly connected 'to the subject
matter of the daim, not to the daim itself';
whereas from this it infers that '[a] proper
counter-daim need not be a mirror image
of the daim or rest upon precisely the
same theory or facts' but that it 'must be
sufficiently linked to the facts or
circumstances giving rise to the daim -
the "subject matter"- to enable the Court
to address both efficiently in the context of
a single proceeding ... "' (I.C.J. Reports,
1998, pp. 200-201, italics in original).
44. As indicated, the Court agreed with the
United States that its counter-claim- even though it did
not involve facts adduced by Iran concerning the United
States' attacks mi Iranian oil platforms - was
nevertheless "directly conriected with the subject-matter
of the c:laims of Iran." Ibid., p. 205 (underlining
added).
45. In the present case, the DRC argues that
part of Uganda's counter-daim (relating to events prior
to May 1998) is inadmissible because-
"les événements qui concernent
respectivement les prétentionsougandaises
et la requête du Congo ne se sont pas
dérouléspendant la mêmepériode, loin
s'en faut. C'est dés lors en application
d'une jurisprudence constante qu'il y a
lieu d'écarter cet aspect de la demande
comme irrecevable en tant que demande
4
reconventionnelle. " (Observations, para.
4 "The events rcferred to by Uganda's counter-claim and the claim
of the Democratie Republic of Congo did not talŒplace at the same
23 42, italics in original).
46. This argument is unsustainable both as a
matter of jurisprudence and as a matter of fact. As to the
former, Article 80 imposes no requirement that counter
claims must relate only to events that "take place at the
same time" as the events upon which the original daim
is based. The test, as set forth in Article 80 itself and as
the Court bas elucidated in both the Oil Platforms and
Genocide cases, is whether the counter-claims are
"directly related to the subject-matter" of the original
claim. Temporality, to be sure, is one factor (among
others) to be taken into account in detennining whether
a counter-claim is directly related to the subject matter
of the original claim. But even the factor of time, in the
circumstances of the present case, militates in favor of a
finding that Uganda's counter-claim, in its entirety, is
directly connected to the subject matter of the DRC's
daim. As stated above, the facts adduced in the
Counter-Memorial, and upon which Uganda's counter
claim is based, demonstrate that the Congolese State's
illegal use of force against .Uganda - involving, in
particular, its support for and collaboration with armed
groups attacking Uganda from Congolese territory - was
of a continuons and uninterrupted nature from 1994 to
the present, and that it spanned a period that bath
preceded and coincided with the time period covered by
Congo's daim against Uganda. There is nothing in the
Court's jurisprudence, and no principle of law that
restricts a counter-claim to the precise dates covered by
the originaldaim.
47. The DRC's Observations mischaracterize
the counter-claim in an effort to make it appear that
Uganda itself is the author of the theory that the counter
claim can be properly subdivided into three distinct time
periods, and that only the last of these is directly
time. Thus, jurisprudence demands that this particular daim within
the larger counter-claim be dcclared inadmissible."
24connected to the subject matter of the original daim.
This is easily refuted. '.The obvious,;flaw in the DRC's
argument is that it confuses Uganda's defence with its
counter-claim. These are treated by Uganda in separate
Chapters of the Counter-Memorial. In Chapter XVII,
entitled "Lawful Self-Defence: The Relevance of
Article 51 of the United Nations Charter", the position
of Uganda is stated with respect toits reliance on Article
51 as a defence to the DRC's daims involving the
presence of Ugandan armed forced on the territory of the
DRC. In that Chapter, at paragraph 360, it is stated that:
"For present purposes, that is the
application of the provisions of Article 51
of the Chapter to the facts, it is necessary
to analyse military and political
developments in relation to three separate
periods." (Underlining added).
48. The paragraphs that follow refer to the
different actions of the Ugandan armed forces during
three separate periods, consistent with the context of the
discussion: Uganda's invocation of Article 51 as a
defence to the daims presented by the DRC. J;'hus,the
three periods are described as: a) the period when
Ugandan armed forces responded to armed attacks
emanating from Congolese territory without crossing the
border, Counter-Memorial, para. 361; b) the period
when Ugandan troops entered Congolese territory to
contain these armed attacks, with the consent of the
Congolese government, Counter-Memorial, para. 362;
and c) the period after consent was withdrawn when
Ugandan armed forces operated on Congolese territory
in the lawful exercise of Uganda's right to self-defence
under Article 51. Counter-Memorial, paras. 363-366.
As the Counter-Memorial makes clear, throughout ali of
these periods Uganda exercised its Jawful right to self
defence against armed attacks from Congo. The three
periods merely describe the different means of self
defence that Uganda employed, and highlight the fact
that only during the last period was it necessary for
25Uganda to invoke and rely upon Article 51 as a legal
basis for its actions. This in no way negates or mitigates
the state responsibilityf the DRC for the armed attacks
against Uganda during all three periods.
49. This is made abundantly clear in Chapter
XVIII of the Counter-Memorial, entitled: "The State
Responsibility Of The DRC And The Counter-claims Of
The Republic of Uganda". The first paragraph of this
Chapter states:
"372. In Chapter XVII the relations
between Uganda and the DRC were
examined in the context of Article 51 of
the Charter and the concept of an armed
attack. In this connection the more
general question of State responsibility of
the DRC for its sponsorship of anti
Uganda armed groups was left on one
side."
50. In dealing with the behaviour of the
Congolese State, and in particular its sponsorship or
tolerance of military operations by Congo-based armed
groups against Uganda, the Counter-Memorial makes
no reference to separate time periods, but instead
describes one continuous and uninterrupted series of
attacks against Uganda from 1994 to the present:
"373. The practical purpose of the
present chapter of the Counter- Memorial
is to indicate the counter-claims of the
Republic of Uganda, but first of ali it is
necessary to recall the background. The
Republic of Uganda has for more than
seven years been the victim of the military
operations and other destabilising
activitiesof hostile armed groups either
sponsored or tolerated by successive
Congolese governments.
26 ...•·.·
374. The details of these actlvttles
have been set forth in Chapters, I to VI
above... "
51. Chapters I to VI describe the armed
attacks against Uganda, for which the Congolese State
bears responsibility, during the entire period from 1994
to the present. The counter-claim, as set forth in
Chapter XVIII, also covers the entire period. For
example, the DRC is alleged to have breached its
"obligation not to provide assistance to armed groups
carrying out military or paramilitary activities in and
against Uganda by training, arming, equipping,
financing and supplying such armed groups" over a
seven-year period:
"382. Since at least 1994, the
Democratie Republic of Congo has
harbored and assisted armed groups
staging major assaults in and against
Uganda." (Underlining added).
52. Thus, Uganda's counter-claim, alleging
breaches of well-established legal obligations by the
Congolese State, is not divided into separate time
periods. It is one continuous and indivisible whole. It
sets forth facts showing that Congo bears responsibility
for armed attacks against Uganda continuously from
1994 to the present. The actions of the Congolese State,
which form the basis of the counter-claim, are the same
-in both nature and effect- before and after May 1998.
Accordingly, there is no basis for bisecting it at that date
or rendering any part of it inadmissible.
53. The DRC also argues that Uganda's
counter-daim is inadmissible to the extent it relies on
facts beyond those that are necessary to refute or defend
against the original claim. This argument is based on
the DRC's erroneous theory that the facts of the counter
claim must be directly connected to the facts of the
defence, a theory whose Jack of merit has already been
27discussed. See above para. 19. In addition, as the Court
recognised in the Genocide case, a counter-claim
inevitably introduces facts beyond those that are
necessary to a defence on the merits:
"Whereas it is established that a
counter-daim has a dual character in
relation to the daim of the other party;
whereas a counter-claim is independent of
the principal daim in so far as it
constitutes a separate 'daim', that is to say
an autonomous legal act the object of
which is to submit a new daim to the
Court, and, whereas at the same time, it is
linked to the principal daim, in so far as,
formulated as a 'counter' daim, it reacts to
it; whereas the thrust of a counter-claim is
thus to widen the original subject-matter
of the dispute by pursuing objectives other
than the mere dismissal of the daim of the
Applicant in the main proceedings - for
example, that a finding be made against
the Applicant; and, whereas in this
respect, the counter-claim 1s
distinguishable from a defence on the
merits[.]" (1.C.J. Reports, 1998, p. 256,
underlining added).
54. The standard, then, is not whether the
counter-claim introduces facts beyond those necessary
to defend against the original daim. Rather, it is, as
stated in Article 80 and reiterated by the Court, whether
the facts so introduced are directly connected to the
subject matter of the original daim. The facts
underlying Uganda's counter-claim relating to the armed
attacks emanating from Congolese territory from 1994
to the present, which were sponsored or tolerated by
successive Congolese governments, are directly
connected to the subject matter of the DRC's daim that
it is a victim of an armed attack by Uganda.
Accordingly, Uganda's counterclaim, in its entirely, is
28 .~:
admissible and the DRC's challenge to it must be
rejected. · .·- .,..·
D. The Counter-Claim Relating To The Attack
On The Ugandan Embassy And The
Inhumane Treatment Of Ugandan Diplomatie
Personnel And Other Ugandan Nationals
55. This counter-claim is set forth in the
Counter-Memorial, paras. 397-408.
56. Once again, as a preliminary question,
the Democratie Republic of the Congo advances the
alleged criterionof a connection between the counter
daim and the deferree presented to refute the principal
daims. See the Observations, paras. 56-58. This
criterion has no legal basis.
57. When this portion of Uganda's counter-
claim is read together with the DRC's Application and
Memorial, it is clear that the counter-claim satisfies
Article80, paragraph 1. All of the criteria this Court bas
established for determining compliance with the
"directly connected" standard have been met: the facts at
issue are of the same nature of many of .the facts upon
which the DRC's daims are based, they are ali part of
the same factual complex, and Uganda is pursuing many
of the same legal aimsas the Congo. Moreover, the goal
of procedural economy would be served by allowing
Uganda's counter-claim be beard together with Congo's
daim.
58. It bears mention in the first instance that
the DRC's Application itself ail but acknowledges the
direct connection between this portion of Uganda's
counter-claim and Congo's daim. At page 11 of the
Application, the DRC states:
"The Democratie Republic of the
Congo founds its case on the armed
aggression which it bas suffered since the
invasion of its territory on 2 August 1998,
29 together with ali of the ... acts resultant
therefrom . . . ." (Underlining added,
italics in original).
59. Thus, by Congo's own admission, this
case is founded, at least in part, on aU of the acts
resultant from the purported invasion of its territory on
or around 2 August 1998. Since the attacks on the
Ugandan Embassy and Ugandan nationals began just
days later on 11 August and were a direct outgrowth of
the hostilities on Congolese territory, Congo's own logic
shows that the Embassy attacks are directly connected to
the DRC's daims.
60. The facts at the root of this portion of
Uganda's counter-claims are also of the same nature as
many of the so-called facts underpinning Congo's daim.
For instance, the DRC accuses Uganda of "arbitrary
detentions" and "inhuman and degrading treatment."
Application, p. 9. In a similar vein, Uganda's counter
claim attacks the DRC's unlawful detention and
inhumane treatment of Ugandan diplomatie personnel
and other nationals. Counter-Memorial, paras. 397, 399.
Moreover, the DRC accuses Uganda of "looting of
public and private institutions" and "theft of property of
the civilianpopulation." Application, p. 9. Uganda, for
its part, targets Congo's confiscation of over U.S.$6
million of property belonging to the Government of
Uganda and Ugandan diplomatie personnel. Counter
Memorial, para. 397. · Finally, and not least
significantly,aU the acts in question were allegedly
committed by the ar:t:niesof the two States that are
parties to this proceeding. Just as DRC troops were
responsible for the attacks on the Ugandan Embassy and
Ugandan nationals, as set forth in Uganda's counter
claim, Congo daims that Ugandan troops committed
similar offenses. lt is thus plain that many of the DRC's
and Uganda's complaints are of the same factual nature.
61. It is likewise unmistakable that the
DRC's daims and Uganda's counter-claim form part of
30the same factual complex. The events ih·dispute in each
case took place at the same time and on the same
territory (i.e., the territory of the Democratie Republic of
the Congo). As a direct outgrowth of the hostilities
between the two States that constitute the subject matter
of the DRC's daim against Uganda, FAC troops
stormed the Ugandan Chancery, then detained and beat
Ugandan nationals at the airport, and then broke into the
Chancery once more. See the Counter-Memorial, paras.
397-399. The facts relevant to both the daims and the
counter-daim thus form part of a complex tapestry that
cannot be unwoven.
62. Just as the facts underlying the DRC's
daims and Uganda's counter-claim are of the same
nature, so too are the legalims advanced by each. At
page 17 of its Application, for example, Congo asserts
that Uganda is guilty of "human rights violations in
defiance of the most basic customary law." Elsewhere,
the DRC contends that it is entitled to "compensation
from Uganda" for all acts of looting and theft.
Application, p. 19. In a parallel fashion, Uganda's
counter-claim on this score is based on the DRC's
"breaches of the standard of general internati.onal law
based upon universally recognized standards of human
rights," Counter-Memorial, para. 407, and demands
compensation for the unlawful expropriation of
Ugandan property. Counter-Memorial, para. 408.
63. If the direct connection between
Uganda's counter-claim concerning the FAC's unlawful
attacks on the Ugandan Embassy and the subject matter
of the DRC's daims were not sufficiently plain already,
the connection is brought into sharp relief by the fact
that after the FAC seized control of Uganda's Embassy
in November 1998, it assigned the premises to anti
Uganda insurgent leader Taban Amin, who was
permitted to establish his headquarters there. Thus, the
Congolese State's attack upon and seizure of the
Ugandan Embassy was directly connected toits support
for anti-Uganda insurgent groups carrying out armed
31attacks against Uganda from Congolese territory. And
these State-supported acts of armed aggression against
Uganda are, as previously shown, directly connected to
the subject matter of the DRC's daim against Uganda.
See above paras. 24-54.
E. The Connter-Claim Relating To The DRC's
Violations Of lts Obligations Under The
Lusaka Agreement
64. This counter-claim ts set forth m the
Counter-Memorial, paras. 409-412.
65. As before, the Democratie Republic of
the Congo advances the alleged criterion of a connection
between the counter-claim and the deferree presented to
refute the principal claim. See the Observations, paras.
65-68. This criterion bas no legal basis.
66. Nor is there any basis for the DRC's
contention that there is "[l]âbsence de lien éntroitentre
la demande reconventionnelle et la requête de la
République démocratique du Congo. 5" See the
Observations, para. 60. To the contrary, the facts upon
which this counter-claim is based are directly connected
to subject matter of the Application.
67. As is well known to the Court, the
Application alleges that Uganda has committed an
"armed aggression" against the DRC, by means of the
invasion and occupation of Congolese territory by
Ugandan armed forces, as well as support for Congolese
rebel organisations hostile to the Government of the
DRC. See the Application, pp. 5-11, 13 and 17. The
DRC expressly requests that the Court:
"Adjudge and declare that:
5 .."an absence of a connection between the counter-claim and the
Democratie Republic of Congo'splication."
32 •1••:·••
(a) Uganda is guilty of an act of
aggression within the meaning of Article 1
of Resolution 3314 of the General
Assembly of the United Nations of 14
December 1974 and of the jurisprudence
of the International Court of Justice,
contrary to Article 2, paragraph 4 of the
United Nations Charter;
Consequently, and pursuant to the
aforementioned international legal
obligations, to adjudge and declare that:
(1) ail Ugandan armed forces
participating in acts of aggression shaH
forthwith vacate the territory of the
Democratie Republic of the Congo; [and]
(2) Uganda shall secure the
immediate and unconditional withdrawal
from Congolese territory of its nationals,
both natural and legal persons[.]"
(Application, pp. 17, 19, italics m
original).
68. The DRC's Memorial of 19 July 2000
contains the following Submissions:
"The Democratie Republic of the
Congo, while reserving the right to
supplement or modify the present
submissions and to provide the Court with
fresh evidence and pertinent new legal
arguments in the context of the present
dispute,requesl<;the Court to adjudge and
declare:
1. That the Republic of Uganda, by
engaging in military and paramilitary
activities against the Democratie Republic
33 of the Congo, by occupying its territory
and by actively extending military,
logistic, economie and financial support to
irregular forces operating there, bas
violated ... principles of conventional and
customary law...
4. That, in light of ali the violations
set out above, the Republic of Uganda
shall, to the extent of and in accordance
with, the obligations set out more
particularly m Chapter VI of the
Memorial, and in conformity with
customary international law:
- cease forthwith any continuing
internationally wrongful act, in particular
its occupation of Congolese territory, its
support for irregular forces operating in
the Democratie Republic of the Congo, its
unlawful detention of Congolese nationals
and its exploitation of Congolese wealth
and natural resources ... '
... " (Memorial, pp. 147-148).
69. The facts underlying Uganda's counter-
claim could not be more close!y or directly connected to
this subject matter. The Lusaka Agreement
(Agreement)- which the Court has already recognised
as "an international agreement binding upon the
Parties", Order on Interim Measures, I.C.J. Reports,
2000, p. 12 - addresses the same issues as those
addressed by the DRC in its Application and Memorial:
armed conflict between Uganda and the DRC; the
presence of Ugandan armed forces on Congolese
territory; the timing and conditions for the withdrawal
of such forces; the harbouring of armed groups seeking
to destabilise neighbouring countries; the support of
34irregular forces operating against neighbouring
countries; the obligation.to refrain from harbouring or
supporting such forces; and the commitment to disarm
and demobilise them. The Agreement establishes a
comprehensive system of public order whose purpose is
to end the armed conflict in the Democratie Republic of
the Congo, the very same armed conflict that is the
subject matter of the DRC's Application, and to bring
peace and stability to the DRC, Uganda and
neighbouring countries. This is reflected in the
Preamble:
"We the Parties to this Agreement;
DETERMINED further to put an
immediate hait to any assistance,
collaboration or givingof sanctuary to
negative forces bent on destabilising
neighbouring countries;
EMPHASISING the need to ensure
that the principles of good
neighbourliness and non-interference
in the internai affairs of other countries
are respected;
CONCERNED about the conflict in its
Democratie Republic of Congo and its
negative impact on the country and
other countries in the Great Lakes
Region;
REITERATING the call made at the
Second Victoria Falls Summit held
from 7 to 8 September, 1998, as
contained in the Joint Communiqué of
the Summit, for the immediate
cessationof hostilities;
COGNISANT of the fact that
35 addressing the security concerns of the
DRC and neighbouring countries is
central and would contribute to the
peace process;
RECOGNISING that the conflict in
the DRC bas both internai and externat
dimensions that require intra
Congolese political negotiations and
commitment of the Parties ... to
resolve;
... " (Lusaka Agreement, Counter
Memorial Annex 45, Preamble).
70. The express commitments undertaken by
the Parties to the Agreement, including the DRC and
Uganda, to end the armed conflict are summarised at
paragraphs 66-68 of Uganda's Counter-Memorial, as
follows:
"66. To resolve the internai
conflict between the Government of the
DRC and the Congolese rebets, the Lusaka
Agreement obligated both the government
and the three armed Congolese opposition
groups to stop fighting, disengage their
forces, and participate in a 'national
dialogue' with ali Congolese social and
political forces for the purpose of
establishing a 'new political dispensation'
in the DRC. (Lusaka Agreement, paras.
19 and 20). The Agreement defined
'national dialogue' as 'the process
involving ali stakeholders in the ioter
Congolese political negotiations with a
view to installing a new political
dispensation which will bring about
national reconciliation and the early
36 .·.-- :......
holding of free and fair democratie
elections.' (Annex C to the ·.Lusaka
Agreement). The Agreement placed the
three rebel groups and Congolese civil
society on an equal footing with the DRC
government in the national dialogue, by
providing that 'ali the participants in the
inter~Cong polltial negotiations shall
enjoy equal status.' (Annex A to the
Lusaka Agreement, Ch. 5, para. 5.2b).
The Agreement further provided that the
national dialogue would be conducted
under the guidance of a neutral facilitator
appointed by the Organization of African
Unity (OAU). (Annex A to the Lusaka
Agreement, Ch. 5, para. 5.3).
67. The Agreement specified that,
after completion of the national dialogue, a
new national army would be formed, and
that it would incorporate the forcesof the
three armed opposition groups:
'Upon conclusion of the
national dialogue, therehaHbe
a mechanism for the formation
of a national, restructured and
integrated army, including the
forces of the Congolese Parties
who are signatories to the
Agreement, on the basis of
negotiations between the
Government of the DRC and
the RCD and MLC.' (Lusaka
Agreement, para. 20).
68. In addressing the externat
conflict between the DRC and other
States, the parties to the Lusaka
Agreement recognised that the heart of the
problem was the use of Congolese
37territory by armed irregulars seeking to
destabilise or overthrow neighbouring
governments, and the support given to
these irregulars. To resolve the problem,
they agreed on a series of specifie
measures to prohibit the signatories from
aiding or abetting irregular groups, to
prevent them from continuing to operate
from Congolese territory, and to eliminate
them by disarmament, demobilisation,
resettlement and reintegration into civil
society. Thus, the Agreement provided
that:
'The Parties to the Agreement
shall take ali necessary
measures aimed at securing the
normalisation of the situation
along the international borders
of the Democratie Republic of
Congo, including the control of
illicit trafficking of arms and
the infiltration of armed
groups.' (Lusaka Agreement,
para. 17).
'Normalisation of the security
situation along the common
borders between the
Democratie Republic of Congo
and its neighbours requires
each country:
(a) Not to arm, train,
harbour on its territory, or
render any form of support to
subversive elements or armed
opposition movements for the
purpose of destabilising the
38 . t~;
. . .~••••
others;
f
' '
(b) To report ali strange
or hostile movements detected
by either country along the
common borders;
(c) To identify and
evaluate border problems and
cooperate in defining methods
to peacefully resolve them;
(d) To address the
problem of armed groups in the
Democratie Republic of Congo
in accordance with the terms of
the Agreement.' (Annex A to
the Lusaka Agreement, Ch. 12,
para. 12.1).
'There shaH be a mechanism
for disarming militias and
armed groups... In this
context, ali Parties commit
themselves to the process of
locating, identifying, disarming
and assembling ali members of
armed groups in the DRC.'
(Lusaka Agreement, para. 22)."
71. The DRC, Uganda and the other Parties
to the Agreement also made specifie commitments on
the withdrawal of Ugandan and other foreign armed
forces from Congolese territory. As summarized at
paragraphs 72-74 of the Counter-Memorial:
"72. The Agreement recognised
that the presence in Congo of externat
forces, including those of Uganda, was
caused by the presence of the armed
irregular groups. Thus, withdrawal of the
39external forces depended upon, and bad to
be preceded by, the disannament of these
groups. This was explicitly set forth in the
implementation calendar:
'The final withdrawal of ali
foreign forces from the national
territoryof the DRC shall be
carried out in accordance with
the Calender in Annex "B" of
this Agreement and a
withdrawal schedule to be
prepared by the UN, the OAU
and the JMC.' (Lusaka
Agreement, para. 12).
'The final orderly withdrawal
of ali foreign forces from the
national territory of the DRC
shaH be in accordance with
Annex B of this Agreement.'
(Annex A to the Lusaka
Agreement, Ch. 4, para. 4.1).
'The Joint Military
Commission/OAU and UN
shall draw up a definitive
schedule for the orderly
withdrawal of ali foreign forces
from the Democratie Republic
of Congo.' (Annex A to the
Lusaka Agreement, Ch. 4, para
4.2).
73. Annex B to the Agreement is
entitled 'Calendar for the Implementation
of Ceasefire Agreement.' It lists 21
'Major Ceasefire Events' and establishes
dates for each of them, starting with '1.
Formai signing of the Ceasefire' on 'D
Day.' Among the most significant of the
40other events are the following:
<
'5. Establishment D-Day + 0
of Joint hoursta
Military D-Day + 7
Commission days
and Observer
Groups.
6. Disengagement D-Day +
of Forces. 14 days
7. Selection of a D-Day +
Facilitator. 15 days
12. Beginning of D-Day +
National 45 days
Dialogue.
13. Deadline for D-Day +
the closure of 90 days
the National
Dialogue
14. Establishment D-Day +
of New 91 days
Institutions.
15. Deployment D-Day +
ofUNPeace 120 days
Keeping
Mission.
16. Disarmament D-Day + 30
ofArmed days ta D-Day
Groups. + 120 days
17. Orderly D-Day +
Withdrawal 180 days
of ail Foreign
Forces.'
(Annex B to the Lusaka Agreement,
41 pp. 2-3)
74. Thus, the parties to the Lusaka
Agreement expressly agreed that foreign
forces would remain in their positions in
Congo until, inter alia: the conclusion of
the national dialogue and the
establishment of new Congolese
institutions; and, especially, the
disarmament of armed groups. Until the
occurrence of these 'Major Ceasefire
Events,' aUforeign forces were directed to
'remain' in their 'declared and recorded
locations':
'Ali forces shall remain in the
declared and recorded locations
until:
(a) In the case of foreign
forces, withdrawal bas started
in accordance with the
JMC/OAU and UN withdrawal
schedule... ' (Anne x A to the
Lusaka Agreement, Ch. ll,
para. 11.4)."
72. It should be abundantly clear, from the
foregoing excerpts from the Agreement itself, that
Uganda's counter-claim, asserting that the DRC bas
violated critical provisions of the Agreement, is directly
connected to the subject matter of the daim set forth in
the DRC's Application and reiterated in its Memorial.
The counter-claim asserts, inter alia,that the DRC bas
violated the Lusaka Agreement by failing to honour its
commitments to cease providing support to the armed
groups carrying out attacks in and against Uganda from
Congolese territory, and to cooperate in disanning and
demobilising these groups. See the Counter-Memorial,
paras. 87-101, 409-412. As set forth in the Counter
Memorial, although the Lusaka Agreement was signed
42 ... --,-.-.-
in July 1999, anti-Uganda rebels belonging to same
armed groups identified.in the Agreeinènt continued to
carry out cross-border attacks against Uganda from their
bases in eastern Congo, and continued to enjoy the
support and sponsorship of the Congolese government
throughout the years 1999 and 2000, and into 2001. See
the Counter-Memorial, paras. 95-97. The counter-claim
also asserts that the DRC failed to honour its
commitments to engage in the intra-Congolese dialogue,
and to facilitate the deployment of the United Nations
observer force, known by its French acronym as
MONUC. See the Counter-Memorial, paras. 87-94.
Both of these commitments were express!y recognised
by the Parties, including the DRC, as necessary elements
of the overall plan to end the armed conflict, disengage
contending armed forces, disarm and demobilise armed
irregulars, and arrange the withdrawal of foreign armies
from Congolese territory.
73. The DRC makes the surprising argument
that Uganda's counter-claim is inadmissible because the
Lusaka Agreement was signed on 10 July 1999, which is
subsequent to the filing of the Application on 23 June
1999. The DRC contends that the counter-claim
therefore "concerne une périodedistincte de celle qui est
â la base6de requêtede la République démoratique du
Congo... " Observations, para. 68. This position is
unsustainable. ln fact, the DRC's Memorial complains
of Uganda's alleged occupation of Congolese territory
right up to the time of its filing- 19 Joly 2000- which
is approximately one year after the Lusaka Agreement
became effective. See the Memorial, paras. 1.58-1.79.
The Memorial goes on to accuse Uganda of specifie acts
of anned aggression between August 1999 and March
2000. Ibid., paras. 2.40-2.53. Indeed, it expressly
accuses Uganda of violating the Lusaka Agreement by
6 ••"refers to a period of time different from that referred to in the
daim of the Democratie Republic of the Congo..."
43virtue of armed acttvttles on Congolese territory
between 14 and 16 August 1999:
"Fighting between foreign troops on
Congolese territory constitutes eloquent
proof of the violation of the Lusaka
Ceasefire Agreement. .." Ibid., para. 2.41.
74. This is not only an admission that the
time period covered by the DRC's daim against Uganda
indudes the period covered by the Lusaka Agreement,
it is also an admission that violations of the Lusaka
Agreement, such as those asserted in Uganda's counter
daim, are directly connected to the subject matter of the
DRC's daim.
75. Accordingly, Uganda's counter-claim
relating to the DRC's violations of the Lusaka
Agreement is admissible under Article 80 of the Rules
of Court, and the DRC's challenge must be rejected.
44 SUBMISSIONS
In conclusion, the Republic of Uganda
requests the Court:
First, to decide that the counter-claims
presented in the Counter-Memorial satisfy the
provisions of Article 80 of the Rules of Court;
and
Second, to reject all the requests
prescribed in the Observations of the
Democratie Republic of the Congo dated 25
June 2001.
15 August 2001
Honourable Francis J.Ayume
Attorney General
Republic of Uganda
(signed)
Agent of the Republic of Uganda
45
Written Observations of Uganda on the Question of the Admissibility of its Counter-claims